Ask the attorney is a new feature we are starting with month with attorney Bradley S. Kraus and this week the question and his answer is a follow up to an answer last week in which he said, ” In short, you may know that the tenants are violating the rental agreement. But in court, it’s not about what you know . . . it’s what you can prove.” If you have a question for him, please feel out the form below.
As a property manager, I have had concerns from owners similar to your last column who are unhappy with their tenants and just want them out! It seems like your summation that “it’s not about what you know… it’s what you can prove” is true, but it falls short; giving the impression that, maybe, it’s worth trying to evict on these grounds – with nothing to lose.
But doesn’t Oregon’s statute include language of a rebuttable presumption that a landlord’s termination for cause is retaliatory?
This creates a defense for the tenant to obfuscate the facts, and also comes with penalties to the owner – making the for-cause eviction on minor grounds a much bigger liability than it may be worth.
Thank you for your question.
Every situation is different. The analysis given herein certainly doesn’t take risk assessment into account. Those discussions must be had between attorney and client, and involve a variety of factors that lead up to a strategy going forward.
The retaliation statute you reference, ORS 90.385, does exist, and can provide a defense to certain terminations. The presumption is not automatic, outside of certain circumstances, although there is current legislation proposed which may add new layers to this.
Still, cost, risk/reward, evidence, and long-term goals are all part of the equation.
It’s all about your facts – what you can prove – and yes, the severity of the default does come into the discussion. There are too many layers to landlord/tenant law to get into in every response, so no response should be viewed in a vacuum.
Brad Kraus is a partner at Warren Allen LLP. His primary practice area is landlord/tenant law, but he also assists clients with various litigation matters, probate matters, real estate disputes, and family-law matters. A native of New Ulm, Minnesota, he continues to root for Minnesota sports teams in his free time.
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